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A Short Treatise on Fantasy Sports and the Law: How America Regulates Its New National Pastime

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A Short Treatise on Fantasy Sports and the Law: How America Regulates Its New National Pastime \\jciprod01\productn\H\HLS\3-1\HLS101.txt unknown Seq: 1 9-MAR-12 10:15 A Short Treatise on Fantasy Sports and the Law: How America Regulates its New National Pastime Marc Edelman1 TABLE OF CONTENTS I. INTRODUCTION ........................................ 3 R II. THE HISTORY OF FANTASY SPORTS LEAGUES ............... 4 R A. Before Fantasy Sports ............................... 4 R B. A New Game is Created ............................ 5 R C. The First Rotisserie League Baseball Auction ............ 7 R D. Rotisserie Baseball Grows in Popularity ................ 8 R E. The Internet Boom .................................. 9 R III. THE FANTASY SPORTS INDUSTRY TODAY ................. 11 R 1 Marc Edelman is a member of the faculty at Barry University’s Dwayne O. Andreas School of Law in Orlando, FL and a summer adjunct professor at Fordham University School of Law in New York, NY ([email protected]). Professor Edelman earned his B.S. in economics from the Wharton School (University of Pennsylvania) and both his J.D. and M.A. from the University of Michigan. While a law student at the University of Michigan, Professor Edelman founded the fantasy sports dispute resolution business, SportsJudge.com. In addition, Professor Edelman has served as a legal consultant to various fantasy sports businesses. Professor Edelman wishes to thank Amit Schlesinger, Erica Cohen, Kristen Chiger and Raleigh Webber for their research assistance. He also wishes to thank his wife, Rachel Leeds Edelman, for her assistance in developing the concept for a course in Fantasy Sports & the Law, and the students in his 2011 seminar on Fantasy Sports & the Law for providing their insights on fantasy sports gaming. Professor Edelman retains full copyright to this article and has agreed to provide the Harvard Journal of Sports and Entertainment Law with an irrevocable license to publish this work. Copyright 2011 by the President and Fellows of Harvard College. \\jciprod01\productn\H\HLS\3-1\HLS101.txt unknown Seq: 2 9-MAR-12 10:15 2 Harvard Journal of Sports & Entertainment Law / Vol. 3 A. Different Types of Fantasy Games ..................... 11 R 1. Different Fantasy Sports ....................... 12 R 2. Different Ways to Initially Allocate Players ..... 13 R 3. Different Season Lengths ...................... 15 R B. The Stakeholders ................................... 16 R 1. Participants .................................. 16 R 2. Host Sites .................................... 19 R 3. Commissioners................................ 21 R 4. Treasurers .................................... 22 R 5. Strategic Advisors ............................. 24 R 6. Insurers ...................................... 25 R IV. LEGAL RISKS FOR FANTASY SPORTS HOST SITES ............ 25 R A. State Gambling Law................................ 26 R 1. Is Fantasy Sports Illegal Gambling under State Law?......................................... 26 R 2. Is Fantasy Sports Illegal Gambling? (Majority View) ........................................ 29 R 3. Stricter Views Toward Fantasy Sports ........... 30 R 4. Montana’s Alternative Test of Fantasy Sports .... 33 R B. Federal Gambling Law.............................. 34 R 1. Interstate Wire Act of 1961 ................... 34 R 2. Illegal Gambling Business Act ................. 35 R 3. Professional and Amateur Sports Protection Act . 36 R 4. Uniform Internet Gambling Act ............... 37 R C. Intellectual Property Laws ........................... 38 R 1. Patent Law ................................... 38 R 2. Copyright Law ............................... 39 R 3. Trademark Law ............................... 40 R 4. Right to Publicity ............................ 42 R V. LEGAL RISKS FOR FANTASY SPORTS PARTICIPANTS .......... 45 R A. Criminal Liability under Gambling Laws .............. 45 R B. Civil Liability for Gambling Activities ................ 46 R C. Violating Company Anti-Solicitation Policies ............ 46 R D. Bankruptcy ........................................ 47 R VI. LEGAL RISKS FOR ANCILLARY FANTASY SPORTS BUSINESSES ........................................... 48 R A. Fantasy Sports Treasury Sites ......................... 48 R B. Fantasy Sports Advisors ............................. 49 R C. Fantasy Sports Insurance ............................. 51 R D. Fantasy Sports Dispute Resolution ..................... 52 R VII. CONCLUSION .......................................... 52 R \\jciprod01\productn\H\HLS\3-1\HLS101.txt unknown Seq: 3 9-MAR-12 10:15 2012 / A Short Treatise on Fantasy Sports and the Law 3 I. INTRODUCTION America is in the midst of a “fantasy sports revolution” that is chang- ing the way sports fans interact with one another.2 With more than 30 million Americans playing fantasy sports,3 today’s sports fans spend as much time predicting the performance of professional athletes as Wall Street in- vestors spend predicting stocks and bonds.4 Some fantasy sports contests, such as the World Championship of Fan- tasy Football, charge participants entry fees in the thousands of dollars, and offer grand prizes upwards of $300,000.5 Meanwhile, other business ven- tures, such as Bloomberg Sports, sell fantasy participants “analytical tools” and “expert advice.”6 One insurance carrier, Fantasy Sports Insurance, has even begun to offer fantasy participants insurance policies against injury to their star fantasy players.7 Nevertheless, with the rapid and unexpected emergence of fantasy sports, few have devoted time to understanding how U.S. law applies to fantasy sports businesses and their participants. Thus, many have miscon- ceptions about the law of fantasy sports. This article explains how U.S. law regulates the emerging fantasy sports industry. Part I of this article provides an overview of the history of 2 Neil Janowitz, Bet on Football, Democrat & Chron. (Rochester, NY), Sept. 16, 2005, at I28, available at 2005 WLNR 26900861; see also infra, notes 159 - 169 and accompanying text. 3 See Gene Wang, Fantasy Football Gets Benched, Wash. Post, May 29, 2011, at D3 (estimating about 30 million participants in fantasy football); Tom Van Riper, A Guy’s Fantasy, Forbes, Feb. 28, 2011, at 23 (estimated the entire fantasy sports marketplace at 30 million participants). 4 See generally Fantasy Football Website Aims to Choose the Best Athletes Using a Formula Derived from Wall Street. Its Creators are Most Definitely Bullish on Fantasy Sports, Fla. Sun-Sentinel, Aug. 26, 2009, at 1D (drawing comparisons between the selection of fantasy sports teams and investment portfolios). 5 See Chris Dempsey, Fantasy Revolution Online Craze is Intoxicating to Americans, and Expanding Outside the Sports World, Denv. Post, Sept. 9, 2007, at B3 (describing the entry fees and prizes involved in the World Series of Fantasy Football); Erick S. Lee, Play Ball!: Substituting Current Federal Non-Regulation of Fantasy Sports Leagues with Limited Supervision of Hyper-Competitive Leagues, Loy. L.A. Ent. L. Rev. 53, 64 (2008) (describing “the rise of hyper-competitive fantasy leagues offering cash prizes as high as $100,000”); Childs Walker, Dream Teams: Tired of Second Guessing How Your Favorite Sports Clubs Are Managed? Fantasy Leagues Let You Take Charge of the Action, The Balt. Sun, March 6, 2006, at 1D (“You can find high-stakes na- tional games with top prizes in the hundreds of thousands of dollars.”). 6 See infra, notes 161 -164 and accompanying text. 7 See infra notes 165 - 169 and accompanying text. \\jciprod01\productn\H\HLS\3-1\HLS101.txt unknown Seq: 4 9-MAR-12 10:15 4 Harvard Journal of Sports & Entertainment Law / Vol. 3 fantasy sports leagues. Part II explores the fantasy sports industry today. Part III explains how U.S. laws apply to fantasy sports host sites. Part IV discusses how U.S. laws apply to fantasy sports participants. Finally, Part V applies U.S. laws to businesses that provide ancillary services to fantasy sports host sites and participants. II. THE HISTORY OF FANTASY SPORTS LEAGUES A. Before Fantasy Sports For the American sports fan, professional sports once meant simply an opportunity to attend games, root for teams, and second-guess “the men who ran [the] teams.”8 Then, in the 1920s, the company Ethan Allen re- leased a “table game” called All-Star Baseball, which allowed baseball fans to simulate team management by choosing a “team” from a collection of player cards and selecting the team’s lineup.9 Each player’s performance in All-Star Baseball was determined by probabilities that were derived from the players’ actual past performances, in conjunction with the random event of rotating a spinner over these cards.10 For almost forty years, All-Star Baseball was seen as the best way for sports fans to simulate team management.11 Then, in 1961, Hal Richman, a Bucknell University mathematics student, devised a more complex simula- tion game.12 Richman’s game, Strat-O-Matic Baseball, included one play- 8 Walker, supra note 5. 9 David G. Roberts Jr., Note, The Right of Publicity and Fantasy Sports: Why the C.B.C. Distribution Court Got It Wrong, 58 Case L. Rev. 223, 231 (2007); see also Triple Play: Personal Reviews, Op-Ed Pieces, and Polemics from Outside the Purview of the Umpires, Nine, Sept. 22, 2006, at 110, available at 2006 WLNR 24732952. 10 See Triple Play, supra note 9. 11 Id. 12 See Van Riper, supra note 3 at 24; Stuart Miller, Strat-O-Matic Devotees Celebrate Its 50th Anniversary, N.Y. Times, Feb. 14, 2011, at D5 (“In his 20s, after discour- agement from his father and rejection from numerous companies, Richman
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